AN EXAMINATION OF THE INTERNATIONAL LAW APPROACH TOWARDS STATE RESPONSIBILITIES IN ADDRESSING CLIMATE CHANGE AND ITS OVERALL EFFECTIVENESS

 

 

ABSTRACT

This paper seeks to examine the position of international law towards state responsibilities in addressing climate change and its effectiveness over the years. In order to do this, the paper first examines the concepts of climate change and global warming, the origins of these terminologies, and their effects on the physical world, biological systems, and human societies. Following this, reference is made to the principle of common but differentiated responsibilities and respective capabilities as the hallmark of the international law approach towards climate change. This principle is thereafter observed from its inception under the United Nations Framework Convention on Climate Change to the Paris Agreement. The paper concludes by making recommendations on how alterations to the Paris Agreement could be more effective in addressing climate change.

1.0 INTRODUCTION

The phrase “climate change” is a phenomenon that has consistently grown in usage and global apprehension since it was brought into mainstream parlance in the 1980s. Global warming and climate change are closely related. However, regardless of the similarities, they are clearly different.

The phrase “global warming” was first used in a 1975 Science article by geochemist Wallace Broecker of Columbia University’s Lamont-Doherty Geological Observatory.^[1] Prior to this time, due to the paucity and inconclusiveness of information on the subject matter, global warming was referred to as “inadvertent climate modification.” Climate change, on the other hand, means a change of climate which is attributed directly or indirectly to human activities that alter the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.^[2] As one writer put it, global warming is one symptom of the much larger problem of human-caused climate change.^[3]

The effects of climate change can be classified for the purpose of this paper into the effects on the physical world, biological systems, and human society.^[4]

With regards to the effects of climate change on the physical world; it has led to extreme environmental situations such as hurricanes, cyclones, the drying of the earth, and also the seasonal retreat and melting of the arctic sea ice. The effect of climate change on the biological system has led to the fragmentation of animal habitats and the migration of animals towards cooler regions. The effects of climate change on human society include lack of access to usable water, reduced food production and security, which is capable of causing ailments, and other human health crises as well as the flooding of small island states.

In Nigeria, for example, due to increased deforestation in northern Nigeria, cattle keepers have been forced to go even further and stay longer in southern Nigeria and the Middle Belt and this has led to inter-tribal clashes and the loss of lives and properties.

Upon considering the above-stated effects of climate change, it can be asserted that there must be a careful examination of the means of remedying climate change and the role of international law in achieving this.

 

2.0 INTERNATIONAL LEGAL FRAMEWORK FOR TACKLING CLIMATE CHANGE

Law as a tool of social change has sought to make attempts at mitigating and adapting to the impact of climate change by observing its nature, causes, effects, and thereby enabling the drafters to make reliable laws. The foundational international law on climate change is the United Nations Framework Convention on Climate Change hereinafter referred to as the UNFCCC or the convention.

The UNFCCC was opened for signatures at the 1992 Earth Summit in Rio de Janeiro, Brazil, alongside the Convention on Biological Diversity (CBD), the United Nations Convention to Combat Desertification (UNCCD), and a set of non-binding principles on forest management.^[5] These agreements have brought a sort of environmental revolution which has educated the public and States on the relevance of the adequate use of the environment and its resources, thereby placing environmental legislation at the forefront of government policy with “hard” issues such as trade and security.^[6]

The UNFCCC is a unique form of international law. It exists as a framework convention that establishes broad commitments for its parties and leaves the setting of specific targets or objectives either to subsequent more detailed agreements (usually called protocols) or to national legislations.

The dynamic nature of the UNFCCC lies in the fact that negotiations under the framework are supposed to evolve over time; pursuant to the emergence of new scientific evidence, social understandings, and political changes.^[7]

The objective of the UNFCCC is to stabilise greenhouse gas (hereinafter referred to as GHG) concentrations in the atmosphere at a level that allows ecosystems to adapt naturally to climate change so that food production is not threatened while enabling economic development to proceed in a sustainable manner.^[8]

In order to achieve this, the convention and subsequent enactments made under it take into cognisance, ‘‘the common but differentiated responsibilities and respective capabilities’’ of state parties.^[9]

This principle of common but differentiated responsibilities and respective capabilities enables developed states to lead less developed states in climate change control, adaptation, and mitigation. This principle was adopted, due to the fact that at the time of the birth of the convention, the sovereign states of the world could hardly agree on an actual direct means of addressing climate change. Developed states were conscious of the fact that the compulsory implementation of policies making substantial reductions in greenhouse gases would adversely affect their economy. Developing states were unwilling to take on onerous commitments, arguing that it was mainly the developed countries that were responsible for the substantial production of greenhouse gases, while the Coastal and Small Island Developing States (SIDS), argued for strong and effective commitments.

These varying positions made it possible for the establishment of a structure whereby state parties could progress along the lines of climate change control and mitigation in such a manner that is consistent with their present economic, political, sociological, and technological standing.

At the initial meeting of the conference on parties (COP) in Berlin (1995), the position adopted by the parties to the convention was that Annex I parties (developed states) would take the first step in reducing Greenhouse gases emissions and thereafter non-Annex I parties (non-developed states) would follow suit. The United States of America however objected to ratifying this convention on the basis that developing countries were under no precise obligation to ensure the decrease in greenhouse gas emissions and that there was no sufficient flexibility in how emissions could be reduced.^[10] Following the difficulties that arose from the Berlin mandate, the parties to the Kyoto protocol sought a more global and inclusive approach to cutting GHG emissions.

At the Bali climate conference held in 2007, the agreement of the parties to the convention towards climate change involved Nationally appropriate mitigation commitments or actions for developed countries and Nationally appropriate mitigation actions (NAMAs) for developing countries. In order to do all these, emphasis was placed on mitigation, adaptation, technology, and investment and finance.

The Bali Roadmap with its broadened palette paved the way for the Paris Agreement which has successfully departed from a top-down administration toward a hybrid combination of bottom-up and top-down elements to achieve global ambition.^[11] In essence, this is simply saying that the Paris agreement was built on the premise that for the world to actualise reductions in GHG emissions, responsibility ought to be placed on not just developed countries but also on developing countries.

A good illustration of this hybrid combination can be seen in the provision that mandates each state party to prepare, communicate, and maintain successive nationally determined contributions that it intends to achieve and to pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.^[12] This provision is applicable to all parties to the convention regardless of being developed or not.

 

3.0 THE EFFECTIVENESS OF THE INTERNATIONAL LAW APPROACH TOWARDS ADDRESSING CLIMATE CHANGE

Much praise is to be given to the United Nations, the Intergovernmental Panel on Climate Change, the World Meteorological Organisation and other international agencies and bodies that have spearheaded the fight against climate change and its demerits.

The principle of common but differentiated responsibilities and respective capabilities came into existence at a point in time whereby, although the effects of climate change were becoming more glaring, the world had to move forward in a very careful and precise manner so as to ensure sustainable progress with whatever recommendations and agreements were to be made. This principle when introduced was to be applied stricto sensu, however, with time and globalisation, the international community came to the understanding that in order to adequately address the issue of climate change, all state parties, as well as non-state parties to the convention, are expected to do much more than they were initially expected. This advancement led some authors to rightly assert that countries are moving toward common but more differentiated responsibilities (and related capabilities), i.e., away from a binary understanding of this principle in the Kyoto Protocol to a more nuanced and multifaceted engagement with it.^[13]

The question of the effectiveness with regards to the position of international law on climate change is one that must be carefully looked into because regardless of how buoyant laws are, if they do not achieve the purpose for which they were made, they can be described to be merely big for nothing.

Firstly, a major deterrent to the effectiveness of the Paris Agreement is its lack of a compliance and enforceability regime. It can be said to be almost invariably all bark and no bite as it makes no provisions for penalties, embargoes, and sanctions directed towards states that fail to meet their nationally determined contributions or countries who due to their unwillingness to contribute, set nationally determined contributions which are clearly below their ability to perform. Although it should be noted that enforcement is not a necessary condition for an instrument or norm to be legally binding, it must, more importantly, be noted that the existence of clear sanctions induces compliance and therefore gives law its effectiveness.

The issue of domestication must also be made reference to. In Nigeria, for an international convention to apply as part of our local legislation and to be directly enforceable by our courts, such a convention must be domesticated.^[14] Like most parties to the Paris Agreement, Nigeria is yet to domesticate it and this, therefore, limits acts of judicial activism which could help ensure that the Nigerian government is compelled to work in alignment with the Paris Agreement.

Secondly, inadequate financing for developing countries is another factor militating against the effectiveness of the Paris Agreement. For developing countries like most African states to lay hold of the necessary expertise and technological architecture that would aid them in working in alignment with the spirit of the Paris Agreement, there is a clear need for financial support. Although the Agreement provides that ‘‘developed countries are to continue to take the lead in mobilising climate finances from a variety of sources, including both public and private, and to allocate US$100 billion a year in climate finance for developing countries by 2020 with a commitment for further finances by 2025, taking into consideration the needs and priorities of developing countries,’’^[15] this provision fails to provide a system of accountability and compliance thereby making developing countries to be merely expectant to finances that might never be made available for their use.

Thirdly, the Paris Agreement fails to make appropriate provisions for the phasing out of fossil fuel use and the continuous granting of fossil fuel subsidies. Although the end of fossil fuels is clearly signalled by the GHG neutrality goal and the temperature goal, it is the opinion of the writer that future alterations to the UNFCCC must deliberately make recommendations that would help to ultimately put an end to fossil fuel usage. Fiscal and economic policies must be put in place that adversely affects fossil fuel usage so as to ultimately or to a very large extent phase it out.

 

4.0 CONCLUSION AND RECOMMENDATIONS

It can be said that the issue of climate change has greatly been addressed since the adoption of the UNFCCC and other laws that have been made under the convention. These laws have created a global consciousness of the impact of climate change on the earth, our communities, and our lives. The UNFCCC has taken the gospel of climate change mitigation across to countries and lands that although they have greatly been affected by climate change, know very little and this has thus made room for local policies that are not only aimed at GHG emission reduction but are also cognisance of the possibility of attaining this without sacrificing economic advancement.

Conclusively it can be said that in order to achieve greater effectiveness from the UNFCCC and all laws made to further its purpose, there must be increased:

1. Strategic Sensitization:

The government in partnership with the private sector in all party states to the convention must engage in strategic sensitization and enlightenment campaigns so as to educate its citizenry on what climate change is all about, the effects of climate change, how the citizens can contribute to GHG emission reductions and also what the government is doing with regard to the same.

2. Financing:

As it has been earlier noted, in order to implement the provisions of the convention, there must be adequate financing. Developed countries are to set aside funds that would enable developing countries in adopting the recommendations of the convention in order to meet their set goals. On the part of developing countries, they must make economic and fiscal policies that would enable them to reduce their GHG emissions. These policies include increasing the budget dedicated to environmental protection, investment in renewable energy, and forest planting amongst other things.

3. Tangible solutions towards loss and damage:

The present position of international law towards damage and loss caused by climate change is clearly elusive and fails to address the question of what happens when damage and loss occur as a result of climate change? Although the Agreement recognizes ‘the role of sustainable development in reducing the risk of loss and damage.’^[16] However, this provision merely serves to reduce loss and damage before the fact; subsequent improvements on the present legal position should be aimed at addressing the problem after the fact. This could be done by setting aside a fund aimed at financing climate change solutions in areas that have been adversely affected and might lack the means of adaptation and restoration by themselves i.e., most likely to be in third world states.

4. Increased domestication and support at the state level:

A very crucial weakness of the Paris Agreement is the fact that it has only experienced a very little domestication ratio. Further additions to the UNFCCC should be drafted in such a way and manner that would make more states interested in domesticating and building domestic policies around it.

 

 

Gbadebo D. Adebayo is a final year law student with an interest in energy law and the application of renewable energy policies to achieve climate change mitigation, adaptation and control as well as economic development.

 

 

[1] W. S. BROECKER ‘‘Climatic Change: Are We on the Brink of a Pronounced Global Warming?’’ (1975) 189 science, pp. 460-463.

[2] Article 1(2) of the United Nations Framework Convention on Climate Change.

[3] C. Kennedy and R. Lindsay ‘‘What’s the difference between global warming and climate change?’’ available at https://www.climate.gov/news-features/climate-qa/whats-difference-between-global-warming-and-climate-change (accessed 12 February 2021).

[4] Robert May (intro), “The Britannica Guide to Climate Change; An unbiased guide to the key issue of our age” (Britannica; 2008), pp 4-9.

[5] Kupyer et al, ‘‘The Evolution of the UNFCCC Annual Review of Environment and Resources’’ (2018) Annual Review of Environment and Resources, 345.

[6] J. Carlle, ‘‘Climate change seen as top global threat’’2015 available at https://www.pewresearch.org/wp-content/uploads/sites/2/2015/07/Pew-Research-Center-Global-Threats-Report-FINAL-July-14-2015.pdf (accessed 12 February 2021).

[7] Article 7(2)(a) of the United Nations Framework Convention on Climate Change.

[8] Article 2 of the United Nations Framework Convention on Climate Change.

[9] Article 3(1) of the United Nations Framework Convention on Climate Change.

[10] Kupyer et al, ‘‘The Evolution of the UNFCCC Annual Review of Environment and Resources’’ (2018) Annual Review of Environment and Resources, 345.

[11] Ibid. at  350.

[12] Article 4(2) of the Paris Agreement.

[13] J. Brunnee and C. Streck, ‘‘The UNFCCC as a negotiation forum: towards common but more differentiated responsibilities.’’ (2013) Climate Policy, Vol. 13, no.5, 60.2.

[14] Section 12 of the 1999 Constitution of the Federal Republic of Nigeria.

[15] Article 9(3) of the Paris Agreement.

[16] Article 8(1) of The Paris Agreement.